IN THE CASE OF:	  

		BOARD DATE:	  16 October 2008

		DOCKET NUMBER:  AR20080008080 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the record of her former husband, a former service member (FSM), be corrected to list her as the Survivor Benefit Plan (SBP) beneficiary as a former spouse as directed in their divorce decree.  

2.  The applicant states, in effect, she made a deemed election for former spouse SBP coverage and Defense Finance Accounting Service (DFAS) personnel later informed her the page of her divorce decree indicating former spouse coverage was missing from their files.   

3.  The applicant provides the divorce decree for her and the FSM in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The FSM's record shows he served on active duty, in both enlisted and officer statuses, for 25 years, 3 months, and 17 days, until being honorably released from active duty for retirement, in the rank of sergeant first class (SFC), on 
31 May 1997.  

3.  On 16 May 1987, the applicant and FSM were married.  

4.  The FSM's record shows that during his retirement processing, he elected "Spouse and Child" SBP coverage, with the applicant being named as the spouse beneficiary.    

5.  On 6 August 2002, the applicant and FSM were divorced.  Page 23 of the divorce decree issued by the District Court, 285th Judicial District, Bexar County, Texas, ordered that the applicant continue to be beneficiary as a former spouse for the FSM's SBP.  It further ordered, in effect, that the FSM immediately complete and forward the necessary paperwork to the DFAS to provide 
SBP benefits to the applicant as a former spouse.  

6.  On 13 January 2003, the applicant submitted a deemed SBP election that was processed and accepted by DFAS.  

7.  On 24 April 2005, the FSM called DFAS and indicated that SBP coverage was not in the divorce decree, and DFAS stopped the former spouse election and refunded SBP premiums to the FSM.  

8.  On 16 September 2007, the FSM remarried and his current spouse was added as SBP beneficiary.  

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  This law also decreed that the State courts could treat military retired pay as community property in divorce cases if they so chose.  

10.  Public Law 99-145, dated 8 November 1985, permitted retirees to elect SBP coverage for a former spouse under spouse coverage provisions vice insurable interest provisions, and Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.  



11.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be the beneficiary for the FSM's SBP as the former spouse as directed in their divorce decree of 6 June 2002 was carefully considered and found to have merit.   

2.  The evidence of record confirms that in the divorce decree for the FSM and applicant, which was issued by the District Court, 285th Judicial District, Bexar County, Texas, on 6 August 2002, the court ordered the applicant be named as a former spouse beneficiary for the FSM's SBP.  The applicant properly submitted a deemed election within 1 year of the divorce on 13 January 2003, and this deemed election was properly processed and accepted by DFAS.  It further shows that although former spouse SBP coverage was ordered in the divorce decree, based on a call from the FSM indicating SBP was not directed in the divorce decree, DFAS stopped this former spouse election in April 2005.  

3.  This Board would not normally take action depriving the FSM’s current spouse of property interest without due process.  However, in this case, the applicant properly submitted a deemed election within 1 year of the divorce in accordance with the governing law, and this deemed election was accepted by DFAS and was only stopped based on what appears to be erroneous information provided by the FSM in April 2005, which was well before the FSM's marriage to his current spouse took place.  As a result, the FSM's current spouse was not eligible to become the FSM's SBP beneficiary when they were married because the valid former spouse deemed election was erroneously stopped and should still have been in force at that time.  

4.  It clearly appears that the FSM failed to comply with the divorce decree he agreed to at the time of his divorce from the applicant.  Further, he misrepresented what was directed in the divorce decree to DFAS officials in April 2005, well after the applicant had taken the appropriate deemed SBP former spouse election action in accordance with the governing law.  
5.  The FSM's misrepresentation to DFAS officials that SBP coverage was not covered in the divorce decree resulted in the valid deemed former spouse election being erroneously stopped by DFAS.  As a result, it would be appropriate to correct the record to show the deemed former spouse election properly submitted and accepted by DFAS on 13 January 2003 was never stopped and that the applicant remains the SBP beneficiary as former spouse.  It would further be appropriate to collect all back SBP premiums due, to include those refunded to the FSM. 

6.  In addition, DFAS should notify the FSM and his current spouse that she is no longer the FSM's SBP beneficiary due to the fact that by law, the applicant as the FSM's former spouse was the proper beneficiary at the time of her marriage to the FSM and as result she was not eligible to be named SBP beneficiary at the time of her marriage to the FSM.  

BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant's properly submitted and accepted deemed former spouse SBP election of 13 January 2003 was never stopped, and has remained in force since that date; by showing the applicant is the legal former spouse beneficiary for the FSM's SBP benefits; and by collecting all back SBP premiums due from the FSM's retired pay.  







2.  The DFAS should also notify the FSM and his current spouse that she is no longer the FSM's SBP beneficiary due to an administrative error made in April 2005, which resulted in the former spouse's legally submitted deemed SBP election being erroneously stopped; and that because the former spouse's deemed election was in force at the time of her marriage to the FSM, she was never eligible to be the FSM's SBP beneficiary.



      _________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008080



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ABCMR Record of Proceedings (cont)                                         AR20080008080



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